There are a number of scenarios where race might matter to your case. Most obviously in the civil realm, these could be employment cases, police use of force cases, or claims involving unequal medical care or testing. In any number of other cases, race could come up as a factor that matters in the experience of your potential jurors. So trial lawyers need to be able to talk about race with some sensitivity. We know that the situation is primed for misunderstanding and defensiveness, and new research provides another example.
A recent article in the publication Big Think, spells it out in the title: “The Term ‘White Privilege’ backfires spectacularly and makes social change less likely.” The article reports on a research study (Quarles & Bozarth, 2022) using nearly one thousand research participants, and assessing reaction to an online post about colleges renaming buildings that were originally named for people who supported either “white privilege” (half the participants) or “racial inequality” (the other half). They found that the use of “white privilege” had two effects: It significantly decreased the quality of the conversation (with many comments becoming insults or attacks) and it led to reduced overall support for renaming the buildings.
The reasons for this effect are predictable. Because the term “white privilege” is often interpreted as a suggestion of collective guilt — an attack on being white — the reaction is often defensive. Many whites — around 50 percent, actually — responded with ambivalence or hostility when the “white privilege” language was used, but not when the language of “racial inequality” was used. Specifically, they found that, under the “white privilege” label, whites who were otherwise likely to be supportive of the message were less likely to engage.
This is just one example of the need for language users to be conscious not just of denotative meaning, but also of specific connotations that may vary by social group. It applies to any vocabulary, but particularly to any terms that could qualify as “woke,” under that term’s newly pejorative meaning. As it applies to courtroom communications, I see it as having two implications.
Don’t Use Terms With Baggage to Persuade
Hot button terms can be counterproductive when persuading. As the research indicated, “white privilege” not only turned off opponents, but also made supporters less likely to engage. If your goal is to rename a building on your campus that was named after a racist, then framing it as an issue of “racial inequality” serves your point better than framing it as an issue of “white privilege.” Some might say that the latter language is more accurate in reflecting the selective nuance that allows some to try to brush aside historical faults as unimportant, but that is an accuracy that comes at a cost. If your goal is direct blame in a courtroom, it is even more clear that framing it in a way that focuses on individual responsibility (racism or racial inequality) rather than collective responsibility (white privilege) is going to work better. There could be a scenario where a case is more centrally about “white privilege,” but in that setting you cannot rely on any shared or neutral understanding of what that term means, so unpack it and say what you mean instead.
But Do Use Terms With Baggage in Voir Dire
Loaded terms like “white privilege” can create a polarization that makes persuasion less likely, but in other settings, polarization can have a purpose. Sometimes — and I suspect that the modern emphasis on “white privilege” may be one of those times — the terms are not about converting people across the aisle, but about building or expanding a common understanding among people on the same side of the aisle, and the polarization might be a side-effect. But in a setting like voir dire, the polarization is the point. In a short period of time, and based mostly on views your panel is willing to share, you need to identify the extreme end of the spectrum that is likely to be most hostile to your case. In this situation, a good polarizing term can be useful. You don’t want to alienate those who will be your ultimate jury by seeming to embrace a term that could be negative, but asking about reactions, particularly when a panelist mentions it, can be effective:
Now Mr. Smith just brought up the idea of white privilege, and I want to ask about your reaction to that. How many of you would say that white privilege is real, that it is an important and accurate idea? And how many of you react to that term negatively, thinking it is too broad or overblown?
The bottom line is to be careful and conscious of the language that you’re using. That’s true in all contexts, but particularly in a context that is culturally primed for defensiveness and misunderstanding.